E 713 
.G221 
Copy 1 



Tlie Constitution and Our New Possessions; 
An Answer to Ex-President Harrison. 



AN ADDRESS DELIVERED BEFORE THE 

New York State Bar Association 

AT ITS ANNUAL MEETING HELD AT ALBANY, N. Y. 

JANUARY 16, 1901, AND REPRINTED FROM THE 

PROCEEDINGS OF THE ASSOCIATION. 

Bv CHARLES A. GARDINER, 

OF THE NKW YORK CITY BAR. 



With the Compliments of 

CHARLES A. GARDINER, 

Of New York City. 



Tlie Constitution and Our New Possessions; 
An Answer to Ex-President Harrison. 



AN ADDRESS DELIVERED BEFORE THE 

New York State Bar Association 

AT ITS ANNUAL MEETING HELD AT ALBANY, N. Y. 

JANUARY 16, 1901, AND REPRINTED FROM THE 

PROCEEDINGS OF THE ASSOCIATION. 

By CHARLES A. GARDINER, 

OF THE NEW VOKK CITY BAR. 



"^ 



2. 



THE CONSTITUTION AND OUR NEW 

POSSESSIONS -AN ANSWER TO 

EX-PRESIDENT HARRISON. 



Our rig-ht to ac(|uire and g-overn foreig-n territory was 
advocated 1)efore this Association two years ago. The 
problem then so momentous has passed from the stage 
of controversy into final judgment. The right to acquire 
and govern is now conceded ; for two }ears Congress and 
the President have exercised it; and in the last election 
the action of the people's representatives was sustained 
by the overwhelming vote of the people themselves. 

The problems now before the nation arise from the 
government of our new possessions. In his recent Ann 
Arbor address, General Harrison discussed them with 
such profound learning and fervor of conviction that his 
opinions demand the serious consideration of every 
American. He 1)ases his entire argunient on the self- 
expansion of the Constitution. Annexation i/^so facto, 
he says, extends the document over annexed territory. 
It becomes operative therein [^roprio ■I'ii^orc, and confers 
on the inhabitants our bill of rights and the civil and 
political franchises of American citizens. Congress, there- 
fore, cannot govern the islands with plenary power, but 
is subject to all constitutional limitations. 

History of Proprio ViCxOre Doctrine. 
I. \\\mt is the history of this doctrine? Prior to the 
adoption of the thirteenth amendment, the Constitution 



4 
authorized slavery ; in States only, said the North ; in 
States and Territories also, said the South. The issue 
was political, and after long debate Congress enacted 
first the Missouri compromise act and then other statutes 
excluding slavery from the Territories. But with each 
annexation of new territory, the struggles in Congress 
broke out afresh, and in the crisis of 1847, during the 
debates on the Wilmot proviso and Oregon bill. "Calhoun 
came out with his new and supreme dogma of the trans- 
migratory function of the Constitution and the instan- 
taneous transportation of itself in its slavery attributes 
into all acquired territories." (2 Benton. 713.) Finally, 
in 1849, ""^ ^1''^ I'^^-^t hours of the Thirtieth Congress, Cal- 
houn caused a rider to be introduced to the general 
appropriation bill, which again precipitated the entire 
pro-slavery agitation in its most \'iolent form. In the dis- 
cussion that followed, \A'ebster maintained that the Con- 
stitution did not " extend to the Territories." Calhoun 
replied : " I am very happy, sir. to hear this proposition 
thus asserted, for it will ha\-e the effect of narrowing very 
greatly the controversy between the North and South. 
as regards the slavery ([uestion in connection with the 
Territories. The simple cpiestion is. does the Constitu- 
tion extend to the Territories cu- does it not? It is the 
supreme law not within the limits of the States of this 
Union merely, but wherever our flag waves. * * '•' 
Is not Congress the creature of the Constitution? And 
shall we, the creature of the Constitution, pretend that 
we have any authority beyond the reach of the Con- 
stitution ? " And this, as Benton says, " was the last 
slavery creed of the Calhoun school and the one on which 
his disciples stand." (2 Benton, /SS-) 

Calhoun constructed his creed with his most inexorable 
logic. The Constitution authorized slavery; annexation 



5 
ipso facto extended the Constitution; the Constitution 
proprio vigorc operated wlicrcver extended and overruled 
all laws inconsistent therewith. Hence the Missouri com- 
promise and all other federal, and all territorial, statutes 
prohibiting- slavery in the Territories, he argued, were 
unconstitutional and void ; hence, also, any future similar 
legislation would be unconstitutional and void; and 
hence, finally, slavery would follow the Constitution, and 
the Constitution would follow the flag wherever Ameri- 
can sovereignty extended. 

Calhoun died, but his dogma survived and finally 
became the great issue in the momentous election of i860. 
The Breckinridge convention was for it; the Lincoln 
convention was against it : and so far as the Douglas and 
Bell conventions expressed any opinion, they opposed it. 
Section 7 of the Lincoln platform reads: "The new 
dogma that the Constitution of its own force carries 
slavery into any or all of the Territories of the United 
States is a dangerous political heresy, at variance with 
the explicit provisi®-ns of that instrument itself '•= ''• * 
is revolutionary in its tendency and subversive of the' 
peace and harmony of the country." The issue thus 
joined was submitted to the people, and Lincoln was 
elected, Breckinridge receiving only 845,763 votes out 
of 4,677,353. This was a decision upon the political 
aspects of the question by the highest authority, the 
sovereign people. From this election the South 
appealed to the arbitrament of arms, and was again 
defeated. 

If any political question, any rule of interpretation, 
any view of the Constitution, can be settled by the people 
who made it, then this doctrine originated by Calhoun, 
and now^ resurrected and advocated by General Harrison, 
may be claimed to be forever settled and laid at rest. 



Our Practice for 114 Years. 

II. Orig-inally the Constitution was operative in the 
thirteen States, whicli ratified the document. (Article 
VII. sec. I.) Those States were a mere fringe along the 
Atlantic, hut Ave have since expanded and annexed over 
3,250.000 scjuare miles of new territory. ^^ hat rule of 
practice has Congress ohserved in extending the Con- 
stitution over this vast domain? The ordinance of 1787 
was enacted by the Confederation before the federal Con- 
stitution was adopted. Every Territory organized out 
of the northwestern lands had a vested right to it, guar- 
anteed by Article Vl of the Constitution. (14 Pet., 417.) 
It was to be expected, therefore, that Congress would 
extend the ordinance, as each new Territory was suc- 
cessivelv organized out of the vast northwestern grant. 
A\'hat more logical procedure, too. than that Congress 
should harmonize its entire practice and extend the same 
ordinance not only to the northwestern d'erritories, but 
to all new Territories? This in fact it did, and by suc- 
cessive acts extended the ordinance of 1787 to every 
Territory organized prior to 1850 except Louisiana, 
Florida, ^^lissouri and Arkansas. During sixty-three years 
Congress thus ccjutinued to make laws for the successive 
Territories, irrespective of the Constittition, and often 
even in conflict therewith. ]\Iany provisions were com- 
mon to both documents; many in the ordinance were not 
in the Constitutif)n ; but no less than sixteen of the civil 
rights of the Constitution were not in the ordinance at 
all, including some of the most essential guaranties of 
personal liberty. Even the treason clauses, to which 
General Harrison refers, were never specifically extended 
to a single Territory prior to 1850. 



7 
In Orleans Territory, which existed from 1804 to 1812, 
there was an estabhshed church, a clergy paid out of 
the public treasury, a son could not sue without consent 
of his father, certain criminals were not only denied jury 
trial, but could be executed by the head of the family 
without trial a separate port law existed for New Orleans, 
and lower duties were charged at that port on French 
and Spanish imports by twenty-live per cent than else- 
where in the United States. Of this government Rodney, 
of Delaware, said: " It shows that Congress have a power 
in the Territories which they cannot exercise in the States, 
and that the limitations of power found in the Consti- 
tution are applicable to the States, not to the Terri- 
tories." Yet its validity has been sustained repeatedly 
by the Supreme Court. 

In 1850 Congress organized the Territory of New 
Mexico and enacted that the federal Constitution should 
extend thereto so far as applicable. Since 1850 as 
each new Territory was organized, Congress inserted 
in the organization act a sul)stantially similar provision. 
Such has been our practice for 114 years. From 17S7 
to the present day, every President, every Congress, 
all parties — Republicans and Democrats, Federalists 
and Whigs — believed, and acted on the belief, that the 
ordinance of 1787 and not the federal Constitution was 
the fundamental law of the Territories, with few 
exceptions, prior to 1850. and that since 1850 the 
Constitution has been made operative merely as statutory 
law over new Territories, when and to such extent 
as Congress determined l)y special enactment. Xever 
in our historv has any one in authority assumed that 
annexation ipso facto extended the Constitution nor that 
it existed in the Territories propria zigorc. 



pROPRio ViGORE Analyzed. 

HI. But how can the Constitution extend anywliere 
propria I'igorc? What does propria vigarc here mean? 
Absohitely nothing. A Constitution is only an organic 
law ; it has no inherent vitality, no life, no innate power 
of migration or expansion. It is nut a soul, that General 
Harrison, or Virgil, or some other Pythagorean might 
claim transmigrates propria rigorc. from one political 
body to another, animating each with its own vitality. 
It is a creature, not a creator. It does not act, it regu- 
lates action. It cannot create rights, or extend itself 
or do anything but regulate. It is itself inert; the life 
is in the people who institute it. 

The separate clauses of the Constitution are equally 
incapable of automatic action. They may all be extended 
by external force, l)ut none by innate power; and, as we 
have seen, in every instance the extending power is an 
act of Congress, the agent of the living people. There 
is no provision in the Constitution for self-extension of 
any part of it. Corporate mortgages often provide for 
extension propria I'igarc over after-acquired property. 
But the Constitution has no such provision. Laws are 
necessary in the United States and in all the States, not 
only to put it into operation, but to keep it going. Let 
us examine these clauses in detail. 

Bill of Rights Inoperative. 

(i.) Guaranties of civil rights are inoperative. The 
onl}- al)Solutel}- essential portions of the Constitution 
are those organizing the government and distributing 
the sovereign powers. But they all relate to the nation 
and the States, and cannot be made operative in Terri- 
tories by annexation, act of Congress or otherwise. 
(9 Blow., 244; 141 U. S., 180.) 



9 

The Constitution also contains a bill of rights, and 
General Harrison's princij^al argument is that this bill 
of rights, at least, or the civil rights guaranteed by the 
Constitution, extend propria rigorc to annexed territory. 
A distinction must be made between natural and 
civil rights. Natural rights are given by the Creator 
to all people; they are the inalienable rights of the 
Declaration of Independence. Civil rights are guaranties 
by which natural rights are protected; they are statutory 
and constituticnal and l)clong solely to the nation or 
race that institutes them. The federal Constitution 
deals solely with civil rights, and our courts have held 
that when any people has acquired l)y birthright or 
political action, the civil rights of our Constitution. 
Congress will not interfere therewith. In a late case 
the court said: "The bill of rights was not intended to 
lay down any novel principles of government. l)ut simply 
to embody certain guaranties and immunities which we 
had inherited from our English ancestors." (165 U. S., 
281.) "The right of the people to assemble," said 
Chief Justice W'aite in the Cruikshank case, "was not 
created by the amendment; neither was its continuance 
guaranteed, except as against congressional inter- 
ference. * * * The right to bear arms is not a 
right granted l)v the Constitution; neither is it in any 
manner dependent upon that instrument for its exist- 
ence." (92 U. S., 553.) 

This is true of freedom of speech, the right of petition, 
due process of law, or any other of our civil rights 
which belong to a people sul)ject to the government of 
Congress. Congress can pass no law interfering wUh 
their enjoyment. But inability to act is not extensicm 
of power. Can a mere restriction ui)on the power of 
Congress to pass certain laws as rules and regulations 



lO 

for the government of new territory be held to extend, 
not the restrictions. l)nt the affirmative rights them- 
seh-es? In no sense of the word, 1 repeat, can this 
negative operation of the prohi1)iti(Mis in the bill of 
rights be said to extend the Constitntion over Porto 
Rico or the Philippines. 

Bill of Rights for Citizens Only. 

The bill of rights, moreover, applies only to federal 
citizens. It is a social compact between the United 
States and its citizens. (()4 V. S.. 124.) Referring to 
it. \h-. Jnstice Field said : " The rights thns recognized 
and declared are rights of citizens of the United States, 
nnder their Constitntion. which conld not be violated 
by federal anthority." (144 U. S.. 362.) And it was 
long since decided that the bill of rights operates only 
to protect federal citizens as distingnished from citizens 
of the States. (7 Pet., 247; 123 U. S., 166; 175 
U. S., 172.) 

Bnt Porto Ricans and Filipinos are not federal citi- 
zens. There is no citizenship of a Territory, and the 
only citizenship Congress can confer is national. 
(92 U. S.. 542.) Its sonrces are two, said the Snpreme 
Court, " and two only, birth and naturalization."' 
(112 U. S., loi ; 169 U. S., 702.) Persons may be 
naturalized, either individually under the naturalization 
acts, or " collectivelv." as the court explained, " by the 
force of a treaty by which foreign territory is acquired." 
rrT2 U. S., 102.) Porto Ricans and Filipinos have not 
been naturalized in either manner. 

'The only other source of American citizenship is birth, 
and that nuist l^e where the Constitution is operative. 
No Constitution, no fourteenth amendment; hence no 
citizenship by birth. (169 U. S., 693.) Until Porto 



n 



Rico and the Philippines become States, or until Con- 
o-ress naturalizes their inhabitants, thev will not i)e 
federal citizens, and hence will not be entitled to the 
civil rights of the Constitution. 

Anglo-Saxon Ric.iits Our Btrttirtgiit. 
Again, two things nmst unite to entitle a people to 
the protection of our constitutional guaranties — they 
must own the rights of their own title, and the rights 
must be the identical ones spccilied in our Constitution. 
But the civil rights of our C\)nstitution. belong l)y inherit- 
ance to the .\nglo-Sa.\on race alone. Other races may 
have civil rights, but not tluxse we possess. They are 
our l)irthright; they were the rights of our ancestors 
during the Saxon era of I^nglish history; they were lost 
in the Norman conquest: they were only partly regained 
bv the Magna Charta and acts of confirmation: they 
were brought 1)V the American colonists to this conti- 
nent: they were claimed by the Continental Congress 
as the " rights of Englishmen "' in the petition of 1774 
to George IH; they were secured to our patriot fathers 
bv the Rev(dution and the Constitution : and. as our 
fathers and their descendants migrated from the older 
States, they carried them westward, all over the coim- 
try, "as their birthright." said the Su])reme Court, as 
a part of the conuuon law of the land, said Mr. Justice 
Gray (152 U. S., 52). but always as the same historic 
rights inherited from our Saxon ancestors. (136 U. S., 
448.) Porto Ricans and Filipinos did not possess these 
rights before annexation : they do not now. They have 
their own. which they cherish and. doul)tless. prefer. 
Unless Congress expressly enacts the bill of rights, as 
a law. it will not exist in our new possessions, nor will 
the inhabitants be entitled to any of its guaranties. 



12 



No Uniform Tariff. 

(2.) The iinifoniiity clauses are inoperative. Article 
I, section 8, requires that all tariff, bankruptcy and 
naturalization laws shall be " uniform throughout the 
United States." If Porto Rico and the Philippines are 
integral parts of the United States, the uniformity 
clauses must apply ; if they are not, but are only " out- 
lying dominions" (loi U. S., 133) or "dependencies" 
(3 Wash., 3 C. C. R., 286), then the uniformity clauses 
do not apply. Geographical inclusion or exclusion is 
the test, not constitutional extension ; and the ([uestion 
is unqualifiedly political, belonging to Congress and the 
President, and not to the courts. Political questions 
dilTer from judicial in that none l)ut the sovereign can 
determine them. A sovereign decides by his own will, 
sic volo, sic jiihco. A court decides according to the law 
prescribed by the sovereign. 

The " maintenance and extension of our national 
dominion " is a political, not a judicial problem. The 
reasons are thus stated : " The President and Congress 
are vested with all the responsiljility and ])owers of 
the g()\'ernment for the determination of ([uestions 
as to the maintenance and extension of our national 
dominion. Jt is not the |)ro^'ince of the courts to 
participate in the discussion or decision of these 
questions, for they are of a ])olitical nature and 
not judicial. Congress and the President, having 
assumed jurisdiction and sovereignty, and, having made 
the declarations and assertions as to the extent of our 
national authority and dominion, * '•' '^ all the 
people and courts of the country are bound 1:)\- such 
governmental acts." (50 Fed. Rep., no.) A. question 
like this, as Chief Justice Marshall said, is " more a 



13 

political than a le^-al ciuestiDii; and in its discnssion the 
courts of every country nnist res])ect the pronounced 
will of the Lei^islature." (J I'et., 30S. ) 

The wisdom, also, of the action of the ])ohtical 
departments, in manner and de^-ree of annexing- new- 
territory, is not o])en to (|uestion. As the court said 
in the Williams case (13 Pet., 420), it is not material to 
incjuire. nor is it the i^iroxince of the court to deter- 
mine, whether ihe political departments are ri^iit or 
wrong. It is enoui^h to know that they have decided 
the question. Having" done this, their decision is con- 
clusive ui)on " the judg-es, as well as all other ohicers, 
citizens and suhjects of the government."" ( J 37 
U. S., 212.) 

Annexation Issues, Political Not Judicial. 
Hence all (piestions incident to the ac(|uisition and 
government of I'orto Rico and the Philippines, whether 
we should annex them permanently or siih uiodo; 
whether thev should he a part of our " outlying 
dominion,,"' or integral .])ortions of the L'nited States; 
whether the\- should have local governments or he ruled 
from Washington; whether the inhal)itants should he 
citizens or subjects; whether the Dingley Act should 
api)lv or there should he separate tariffs; these and all 
similar jjrohlems of government are ])olitical, belonging 
exclusivelv to the legislative and executive dei)artments, 
and "not within the i)rovince c^f the judiciar_\- to con- 
travene or (luestion.'" (9 How., 1540 

AIcEnerv I^esolutiox. 
\Miat have Congress and the President done to 
define the geograi)hical and legal status of the islands.-' 
On the same day on which the Senate ratified the treaty, 



' 14 

it resolved: "By the ratification of the treaty of ])eace 
witli S])ain, it is not intended to incorporate tlie inlia])it- 
ants of the PhiHppine Islands into citizenship of the 
United States; nor is it intended to permanently annex 
said islands as an integral part of the territory of the 
United States."' (McEnery resolution.) In the pro- 
visional act for Porto Rico Congress delined the 
political status of the inhabitants as " citizens of Porto 
Rico, entitled to the protection of the I'nited States," 
and imposed tarift and tax laws differing from those 
imposed upon its own territor}', and le\'ied duties on 
commerce between the two countries. 

It thus appears by afftrmative action of Congress 
that the islands are not " permanently annexed." but 
only siih niodo, that thev are not '■' an integral part " of 
the United States, and that their inhabitants are not 
citizens. 

No clearer definition and interpretation of the 
geographical status of the islands and the political 
status of their inhal»itants could be given: and this 
congressional action constitutes the law of the case, 
binding on the President, the Secretary of War and 
all other executive ofiicers, and conclusive up(Mi " the 
judges, as well as all other officers, citizens and sub- 
jects of the government." ( [37 U. S., 212.) The 
same reasoning applies to naturalization and bank- 
ruptcy. Hence none of these causes operates propria 
vigorc in Porto Rico or the Philippines. 

Treason Arguments Fallacious. 

(3.) Miscellaneous Clauses. — General Harrison's 

argument on treason is utterly fallacious. Treason 

is a crime of citizens, he argues: Porto Ricans and 

Filipinos, unless the Constitution operates, are not 



15 
citizens; citizens alone cm 1)e protected by the consti- 
tntional inhil)iti()ns rclatini^- to treason; hence Con- 
stress, l)eini;- nnrestrictcch can enact ah the l)loo(ly laws 
of the niicldle aq-es, and no I'orto Kican or lMlii)in() can 
"know hoW' to beluu-e himself; to do, speak, or say, 
for doubt of the pains of treason." (N. A. Rev., p. 14.) 

His error is patent. Treason is not a crime against 
citizenship, but against allegiance. An}- person w'ho 
violates his allegiance to the Ignited States conmiits 
treason, whether he be a citizen or not. i'orto Ricans 
and Filipinos are not citizens, but subjects. In 1817 Mr. 
Justice Storv thus defined a subject : " A jierson domiciled 
in a country and enjoying the protection of its sox'er- 
eign is deemed a subject of that country." (2 Wheat., 
227.) Again, in 1874, the Supreme Court said: " h^ach 
member of the nation * '■' '•'' owes it allegiance. 
* * '■' Allegiance and protectit:>n are recipro- 
cal obligations. The one is a compensation for the 
other; allegiance for protection and protection for 
allegiance." (21 Wall., 162.) Hence, every person 
entitled to protection is the nation's subject ; and 
hence, also, everv person, in States or Territories, who 
violates that allegiance conunits treason against the 
United States. 

How absurd, however, to claim that annexation 
extends the treason clauses. From the adoi)tion of 
the Constitution they have extended over the whole 
world wherever the relation of American so\ereign 
and American subject existed — in States, Territories, 
American consulates, and even on the high seas aboard 
our men-of-war; it is imi)ossil)le to extend them far- 
ther. In their essential nature they do not apply to 
territory, as the uniformity clauses do, and have 
nothing to do with territorial expansion per sc. They 



i6 

are made for i)ersons. Avitlioiit regard to residence. 
They govern the relations of the United States with 
their snbjects, wherexcr they exist, conchtioned on 
ahegiance alone, and this renders their territorial 
expansion nnnecessary and impossible. 

Ambassadors and Titles of Nobility. 
Finally, there are a nnmber of powers which the 
sovereign peoi)le denied to the federal government. 
Some of these, like the prohilntion against con- 
ferring titles of nobilitv. are mere restrictions on the 
power to act anywhere. It is eqnally absnrd to speak 
of these clanses as extending to onr new territories by 
annexation. Article i, section 9, ])rovides : " Xo title 
of nobility shall be granted by the United States." 
That is, it cannot be granted to a Porto Rican or a 
Filipino, nor yet to an Englishman or German ; bnt that 
does not mean that the Constitution extends oxer 
Porto Rico or the Philippines an}- more than over 
England or Germany. Under article i, section 6, 
congressmen cannot be appointed ambassadors to 
a foreign court — France or Russia, for instance; but 
that does not mean that such prohil)ition thereby 
extends the Constitution over France and Russia. 

Power of Congress Unlimited. 

IV. General Harrison argues that the Constitu- 
tution extends to new territor)' only " so far as appli- 
cable." But what is ai)plicable? This Constitution is 
silent. Wdio shall determine? The admission l)egs 
the whole question. General Harrison argues him- 
self con:])lctely out of court. If the Constitution 
extends only " so far as applicable," then Congress 
may and nuist, as the S(^le depositary of the political 



17 

discretion of the nation, determine whether the 
annexation shall be temporary or permanent, whether 
the territor}- shall be an integral part of the I'nitcd 
States or an ontlNing dependenc)-, whether the 
inhabitants shall l)e citizens or snbjects, and all the 
other qnestions invoh'cd in deciding what provisions 
are applicable and \\hat arc not, lo the new posses- 
sions. This is ecjiiivalent to sa}'ing" that ncj part of the 
Constitution extends proj^rio z'ii^orc, bnt only as 
decided in the absolnte discretion and plenary power 
of Congress. And this is the trne theory ui the law, 
snpported by every decision the Snpreme Conrt luis 
made on the snbject. Sixty years ago it laid down 
this broad rnle: "The term 'territory,' as here nsed 
(article 4, section 3) is merely descriptive of one kind 
of property and is eqni\alent to the word ' lands.' 
Congress has the same ])ower ()\'er it as any other 
property belonging to the United States, and this 
power is vested in Congress withont limitation and has 
been considered the foundation upon which the terri- 
torial governments rest." (14 Pet.. SS?-'' 

Ten years later the conrt announced the com|)re- 
hensive principle that Territories "are not organized 
under the Constitution, noi" subject to its coni])Ic\ 
distribution of tlic powers of go\-ernmcnt as tlie 
organic law; but arc the creations exclusively of tb.c 
legislative department, and subject to its super\ision 
and control." (9 How., 242.) Chief. Justice W'aite. 
sustaining this power, said: " .\11 Territories within 
the jurisdiction of the Ignited States not included in 
any State nnist necessarily be governed b}- or under 
the authority of Congress. The Territories are but 
political subdivisions of the (nitlying donunions of 
the United States. * '•' '•' It has full and complete 



legislative authority over the people of the Territories 
and all the departments of the territorial govern- 
ments." (loi U. S., 1 33-) '-\i^(^' summarizing- the 
whole matter, the court announced this opinion 
through Mr. justice Brewer: "A Territory is a 
political community, organized by Congress, all whose 
powers are created by Congress, and all whose acts 
are subject to congressional supervision." (139 U. S., 
446.) The power of Congress is, therefore, plenary 
and abst)lute, and can be exercised without constitu- 
tional restrictions in our new possessions. 

Harrison Offers No Solution. 

V. What sc)lution does General Harrison offer for 
these momentous problems? None whatever. lie 
criticises and denounces, but has no remedy. If 
Congress can rule with plenary power, he says, it will 
be an " un-American " government, a " state of vas- 
salage " will exist, "tyranny" will prevail, and it will be 
altogether "shocking;" Porto Kicans and Filipinos will 
be "slaves;" the principles of the Declaration will 1>e 
abandoned, and our Revolutionary fathers, who fought 
"for rights, not privileges — for a Constitution, not a 
letter of instructions," will 1)e disgraced in their 
descendants. 

But such fer\-i(l rhetoric adds nothing to a consti- 
tutional argument. Indian Territory' for ninety-eight 
years, and Alaska for thirty-four have been unor- 
ganized Territories. The Constitution has not been 
opcrati^'e therein, they had no local government 
and few federal statutes. For four years President 
Harrison's administration ruled them directlv from 
Washington — more absolutely than the present 
administration is ruling Porto Rico, with its local 



19 
government, and the Philippines, with the Taft Com- 
mission. \\'ere the inhabitants of Alaska and Indian 
Territory "slaves?" \\'crc they in a "state of vas- 
salage?" Was their o-overnincnt' "un-American?" 
Did General Harrison tlagrantly \-i()late the Declara- 
tion and merit the maledictions of our Kevohmtionary 
fathers? 

Let us go a step farther. Who was it that 
inaugurated our present insular and extra-territorial 
policy? That policy received its first practical and 
definite expression in the transmission to Congress 
by President Harrison on February 15, 1893, of a 
treaty providing for the immediate annexation of 
Hawaii. He then said : " The treaty does not attempt 
to deal in detail with tlic (|uestions that grow out of 
the annexation. * -•= * The commissioners repre- 
senting the Plawaiian government have consented to 
leave to the future and to the just and benevolent 
purposes of the United States the adjustment of all such 
cjuestions. If it meets the approval of the Senate, peace 
and good order will l)e secured in the islands under 
existing law until such time as Congress can provide 
1)y legislation a permanent form of government for the 
islands." 

Harrison Originated Present Insular Policv. 

General Harrison is here confronted with a ' dis- 
tressing dilemma. A\'as he right in icSc)^ or is he 
right now? He urged Congress to annex innnediately. 
but onlv sub iiiodo, as we have annexed Porto Rico 
and the Philippines, and then the operation of the 
Constitution and federal statutes \\as to 1)e sus|)cnded 
" until such time as Congress can jn'oxide by legis- 
lation a permanent form of government." For a year 



20 

after ratification, and pending congressional action, 
Hawaii was also to retain its separate tariff laws, 
and its Chinese inhabitants were forever excluded 
from American soil " as if entering from a foreign conn- 
try." The policy of the present administration is 
identical with that initiated by General Harrison. 

Again, he urged that all questions arising out of 
annexation should be left " to the future and to the 
just and benevolent purposes of the United States. 
When Tresident McKinley issued his instructions for 
the government of the Philippines, he not only 
followed the Hawaiian precedent, but adopted General 
I-Iarrison's language — he guaranteed the Filipinos 
a " just and benevolent government " according to 
the principles and "purposes of the United States." 
And yet General Harrison now — seven years later — 
bitterly attacks his own policy. Referring to Porto 
Ricans and Filipinos, he says: "We otTer them only 
this highly consolatory thought: Seventy-six millions 
of free Americans can l)e trusted to deal benevolently 
with you." " The man whose protection from wrong- 
rests wholly upon the benevolence of another man 
or of a Congress is a slave." Our fathers " accounted 
that to hold these things (rights) upon the tenure 
of another man's benevolence was not to hold them 
at all." (N. A. Rev., pp. 8, lo. 12.) 

General Harrison makes his plea to the ec|uity l)ar 
of the American people. He has arraigned the admin- 
istration, its policy and practice. He must conform 
to equity rules. He who would seek equity must 
do equitv. Fie must show clean hands. But he is 
disbarred from court, condemned out of his own 
mouth. He initiated the present insular polic}-; he 



N 21 

invented its phraseolog_v, and of all men in pnblic 
life he alone cannot now rise np to call it accnrscd ! 

Supreme Court Cannot Decide Pending Issues. 

Bnt " these cpiestions will soon be decided by the 
Supreme Court," says General Harrison. That is 
impossible. The Supreme Court cannot and will not 
decide them, and, even if it attemi)te(l to do so, its 
action would be revolutionary and void. Can it 
mandamus the President? Can it enjoin the Con- 
gress? Can it prohibit this sovereign nation from 
exercising its sovereignty over conquered territory? 
Unless it overrules the precedents of a century and 
repudiates a practice that has ]M-evailed since its 
foundation, the court will decide only problems of 'a 
strictly judicial character, refuse to pass on those of 
a political nature and relegate their further con- 
sideration to the political departments of the govern- 
ment. It will thus settle few, if any, of the great 
problems discussed by General Harrison and now 
agitating the American public. 

Undoubtedly the court will follow the construction 
of national power, first laid do\\ n by Chief Justice 
Marshall and uniformly adhered to since, that this 
is a sovereign nation and can annex territor\' abso- 
lutely or sub inodo, and upon any terms and conditions 
it pleases. Having decided this much, it will logically 
follow that it must dismiss from further consideration 
the propriety of the particular terms of annexation, as 
matters within the exclusive jurisdiction of the Presi- 
dent and Congress. 

If annexation be constitutional, all appropriate 
means of effecting it are constitutional, and to incpiire 
into the necessity or wisdom of the means would be, 



22 

as Chief Justice Marshall said, "to pass the line which 
circnmscribes the judicial department and to tread on 
legislative ground. This court disclaims all pre- 
tensions to such power." (4 Wheat.. 423.) Other- 
wise, as Mr. Justice ]\Iiller explained, the court could 
" annul declarations of war, suspend the levy of 
armies and become a great international arbiter, instead 
of a court of justice for the administration of the laws 
of the United States." (i AA'oolw., 156.) These views 
were not presented to the court on behalf of the gov- 
ernment in the pending cases. I submit, with defer- 
ence, that they should have been. They present tlie 
onlv solution of the situation and the one I believe 
the court will ultimately adopt, a solution that provides 
a method for determining pending issues, and yet 
confines the judicial and political departments within 
the functions assigned them by the Constitution. 

Problems for Congress. 
Hence, these cpiestions must be left to the sover- 
eign people and their dtdy constituted agents. Con- 
gress and the President. Is there, then, no restraint 
on their action? All there ever has been in our his- 
tory. Uuring 114 years we have annexed and gov- 
erned 3,250,000 square miles of new territory. The 
power of Congress therein has been plenary, but its 
exercise has been just; its authority has been absolute, 
but its use has been for the greatest good of humanitv. 
During all that time the rights of territorial inhabit- 
ants, though not guaranteed by the Constitution, have 
been amply ])rotected by the fundamental, unwritten 
laws of our civilization. " AA'e must l)e content to 
limit ])ower where we can," said that sturdy patriot, 
Mr. Justice Iredell, " and where we cannot con- 



23 

sistently with its use, wc must be content to repose 
a salutary confidence. Tt is our consolation that there 
never existed a government, in ancient or modern 
times, more free from danger in this respect than 
the government of America." (3 l):dl., 398.) 

Like ]\Ir. Justice Iredell, we should repose con- 
fidence in our nation. Its policies are not chimerical ; 
they are supported b}- law : they are wise and con- 
servative. We have the right to annex Porto Rico 
and the Philippines; the right to hold and govern 
them : the right to give or refuse the Constitution ; 
the right to organize them into Territories; the right 
even to make them into States — why should we not 
continue in the future, as in the past, to exercise 
these lawful, plenary and sovereign powers? \\'e hold 
the islands by a perfect title; no other nation does. 
^^'e are in possession ; no other nation is. \\ hy 
should we give away, or sell, or lease, or abandon 
a single foot of the territory? Why should we not 
restore order, open courts and found schools? A\diy 
should we not give the inhabitants a government of 
liberty, regulated by law, and honestly administered — 
taxation, without tyranny; justice, without l)ribc ; 
freedom of religious \\c)rship and protection to life, 
liberty and property? 

Behold the new centur}-, and at its vcr_\' ])ortals 
behold Milton's prophecy fulfilled, "a noble and 
puissant nation arousing herself like a strong man 
after sleep and shaking her in\incible locks" — our 
Republic rousing herself to the vast opportunities and 
tremendous responsilMlities of the future; every artery 
of her national life throbbing and pulsating with new 
vigor; her Constitution revered, implicitlv obeved, and 
protecting all the rights of her citizens; her reserved 



24 

powers unrestrained by constitutional limitations and 
equal to every demand of the most potential sover- 
eignty — our Republic, with her sublime and infinite 
possibilities, destined to become not only a world 
power, but the puissant and dominating power of the 
new century, a noble, beneficent and peaceful primacy 
among the nations of the earth. 



( 



LibKHKY Uh CUNOKtbb 



010 457 088 4 % 



'^Qtem^ 



